Irish CCPC’s Important Enforcement Role Under the Digital Services Act

The Irish Government has now published the full text of the Digital Services Bill 2023 to give effect to the EU’s Digital Services Act (DSA) under Irish law. While the DSA is already fully in force for certain very large online services, it will apply to all other service providers within scope from 17 February 2024. The Irish Digital Services Bill sets out how the DSA will be given effect in Ireland, particularly as regards supervision and enforcement by relevant Irish authorities.

The DSA is an EU Regulation which applies directly throughout the EU without national legislation. The European Commission has primary, but not exclusive, regulatory responsibility for very large online platforms (VLOPs) and very large online search engines (VLOSEs). Some 19 VLOPs and VLOSEs have been designated and are subject to the DSA since August 2023. Many other online service providers will become subject to the DSA from 17 February 2024. Irish regulatory authorities will carry out all of the supervision of and enforcement against these (smaller) online service providers who have their main establishment in Ireland. These regulatory authorities will also have some regulatory responsibility for the VLOPs and VLOSs established in Ireland.

The Irish Digital Services Bill gives effect to those supervisory and enforcement responsibilities under the DSA. It amends the Broadcasting Act 2009, only recently amended by the Online Safety and Media Regulation Act 2022, and the Competition and Consumer Protection Act 2014 to extend the powers of existing authorities to DSA matters. We consider some of the more notable points of the new Bill:

Designation of Digital Services Coordinator and expanded role for CCPC

National regulators, known as Digital Services Coordinators (DSCs), have general responsibility for ensuring implementation and enforcement of the DSA. Under the Bill, the new Irish Media Commission (Coimisiún na Meán), established in March 2023, is designated as Ireland’s DSC under the DSA.

However, Member States are permitted to designate other regulators for specific areas of the DSA. The most notable aspect of the Bill is that it designates the Irish Competition and Consumer Protection Commission, or CCPC, as the competent national authority for supervision and enforcement of the online marketplace obligations under the DSA, specifically Articles 30 to 32.

• The Bill gives several powers to the CCPC in the context of Articles 30-32, such as investigative powers, including the power to enter premises and seize documents for review
• The power to conduct oral hearings
• The ability to impose interim measures – where a suspected infringement of Article 30-32 is occurring, the CCPC can, by written notice, require the service provider to take certain specified measures that would avoid or reduce the risk
• The power to impose administrative sanctions - the CCPC can impose administrative financial sanctions on a service provider or certain specified personnel for failing to cooperate with an investigation.

These powers are also given to the Media Commission regarding all other obligations under the DSA, except those for which the European Commission has exclusive responsibility.

Designation of vetted researchers, trusted flaggers and out-of-court settlement bodies

The Bill makes provision for the Media Commission to designate:

• Vetted researchers - these are researchers affiliated with an academic institution and with a proven record of expertise in the risk being investigated
• Trusted flaggers - entities acting within their designated area of expertise who submit notices through the notice and action mechanism under Article 16 of the DSA, and
• Out-of-court settlement bodies - these are independent third parties seeking to resolve disputes relating to decisions taken by the online service provider

The Bill sets out how each of these entities can apply to the Commission to be designated as one of the three categorisations. It also authorises the Commission to investigate these entities and to revoke their certification in certain circumstances.

Penalties and enforcement

Financial penalties: the Bill provides for a range of significant financial penalties for breaches of the DSA reflecting those set out in Article 52 of the DSA, including:

• Fines of up to 6% of global turnover for a breach of an obligation under the DSA
• Fines up to 1% of annual turnover for a failure to comply with information requests under the Act
• A daily penalty payment of up to 5% of the average daily turnover or income of the provider in the preceding financial year to compel a provider to end an infringement of the DSA

Compliance notices: the Bill gives the CCPC and the Commission the ability to issue compliance notices to intermediary service providers for suspected breaches of certain provisions of the DSA. These are presumably intended for less harmful breaches of the DSA given the appellate jurisdiction of the District Court and the lower penalties which apply.

Complaint mechanism: the Bill provides a mechanism for the submission of individual complaints to the Media Commission thereby giving effect to Article 53 of the DSA. It also provides for the transmission of a complaint to the CCPC where it concerns Articles 30-32. It remains to be seen how this mechanism will operate in practice or interact with the individual complaint mechanism envisaged under Chapter 4 of Part 8A of the Online Safety and Media Regulation Act.

Conclusion

The DSA will apply to all intermediary service providers from 17 February 2024. The new Bill outlines how the DSA will be enforced in Ireland. Service providers should take note of the expanded role of the CCPC under the Bill, as well as the powers of the DSC within the Media Commission. Collectively these will amount to a significant enforcement regime to tackle non-compliance with the DSA obligations.

You can also read our previous insights on the DSA here. For more information on how the DSA will impact your business, contact a member of our Technology team.

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The content of this article is provided for information purposes only and does not constitute legal or other advice.